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Government proposes mandatory web rating system

A recent government proposal could lead to jail time for pornographers that …

A dubious new regulatory proposal requires placement of government warning labels on web sites that publish content deemed sexually explicit or pornographic and establishes severe penalties for noncompliance. Sponsored by the Bush administration and attorney General Alberto Gonzales, the proposal aims to create a mandatory rating system designed to protect consumers at the expense of free expression.

Condemned by the American Civil Liberties Union as "antithetical to the First Amendment," the new proposal threatens web site owners with up to five years of incarceration for failing to mark explicit content and prompt users before displaying it. An avowed opponent of Internet pornography, Gonzales has frustrated law enforcement agents in the past by stating that the fight against "obscene" content is a top priority. Under the terms of this new proposal, the Federal Trade Commission will be responsible for establishing the rating system. In addition to mandating jail time for web site owners that omit warnings, the proposal also imposes similar punishments on pornographers that use manipulative or misleading content in web pages in order to maximize exposure via search engines.

Critics of the new proposal argue that Internet regulation schemes are costly and ineffective. Since many pornography sites operate outside the jurisdiction of American law enforcement, these regulations will only be imposed on a fraction of sexually explicit web sites. Criminalizing noncompliance could lead to domestic pornographers moving their operations overseas to locations where they will be immune to prosecution. Critics also point out that Internet regulation designed to suppress pornography conflicts with the First Amendment, and could potentially have a detrimental chilling affect on all kinds of expression. David Greene, free speech advocate and director of the First Amendment Project, thinks that the proposal will be slapped down by the courts:

"I believe the law would be struck down as impermissible compelled speech," Greene said. "The only times courts allow product labeling is with commercial speech--advertisements."

Indeed, American courts have systematically rejected countless attempts to limit free speech on the Internet in the past. When the Clinton administration attempted to impose sweeping restrictions on digital expression with the so-called Communications Decency Act, the supreme court sided with the ACLU and ruled that the law was fundamentally unconstitutional, and that Internet expression is entitled to the same constitutional protections currently given to books and other media. In the majority decision issued by the supreme court in the ACLU's case against the Communications Decency Act, the court expresses concerns about the implications of Internet censorship:

"Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig."

Supporters of mandatory Internet content rating schemes disingenuously point to game and movie ratings as a precedent. Unlike the federally enforced rating system articulated in the Bush administration's new proposal, the rating system used by the movie industry is privately controlled and voluntarily enforced and functions adequately without the threat of criminal penalties. Some censorship advocates contend that the latest proposal isn't aggressive enough. Phil Burress of Citizens for Community Values argues that hardcore pornography should be eliminated completely. Buress thinks Gonzales should take anti-pornography regulation to the next level by prosecuting satellite television providers like Comcast and Time Warner that sell hardcore pornography:

"You cannot separate child pornography and hardcore, sexually explicit pornography. That's where our children are being harmed, that's where these pedophiles start. They start with the hardcore pornography. ... [Satellite TV providers and other hardcore pornography distributors] are the culprits and that's where the problem begins and to just say you?re going to crack down on child pornography, this will not fix the problem."

News sites have traditionally taken a strong position against mandatory content rating because they feel that it could lead to censorship of critical journalistic information. Concerned that mandatory rating laws would prevent news sites from adequately covering rape trials, human rights abuses, and countless other issues, a number of prominent news sites issued a statement in opposition to mandatory ratings in 1997. Reuters, CNN, the New York Times, and the National Newspaper Association were among those who signed the statement affirming their opposition. Although the new proposal attempts to nullify such objections by stipulating that sexual content doesn't have to be rated if it is only a "small and insignificant" part of a larger web site, the ambiguity of the terminology is more than enough to justify concern, and it is unlikely that journalists will support this proposal.

Gonzales hopes to push this new legislation through congress as swiftly as possible despite the vocal objections of free speech advocacy groups determined to prevent free Internet expression from becoming a casualty of the federal government's costly and ineffective war against pornography and First Amendment rights. Despite the fact that this new proposal is the result of good intentions, the potential consequences could be dire. As free speech advocates frequently point out, government mandated Internet censorship of any kind gives law enforcement agencies the authority to abridge constitutionally protected civil liberties and could pave the way for selective and exploitative enforcement that silences social commentary and political dissent.